#### Adolph Weil, Plaintiff, *v.*Armin Manheim, Defendant.

(City Court of New York, Special Term,

March, 1910.)

Costs — Payment and enforcement thereof — Staying further proceedings on actions till costs paid — Staying second action till costs of former-paid — Same cause of action.

The general rule is that proceedings in a second action for the same cause as the first action should he stayed until the costs of .the first action are paid, and the fact that plaintiff is pecuniarily unahle to pay the costs of the prior action is not a sufficient excuse to make an exception to the rule.

*566Where the complaint, in an action brought in the Municipal Court of the city of New York, is dismissed, with costs, solely through the fault of the plaintiff himself, the nonpayment of the costs operates as a stay of proceedings in a subsequent action brought by him in the Supreme Court upon the same cause of action. ;

The rule of section 779 of the Code of Civil Procedure as to a stay of proceedings on the part of a party required to pay costs ■of motion should be applied to costs in an action where another action is commenced between the same parties to recover upon the same cause of action.

Motion for a stay of proceedings.

Weinberg Bros., for plaintiff.

Abram S. Jaffer, for defendant.

Finelite, J.

It appears from the papers upon this motion that an action was brought in one of the Municipal Courts of the city of Mew York by this plaintiff against this defendant to recover a statutory penalty in an action for the defendant’s ■failure to deliver to the plaintiff, who was a stockholder of A. ■Manheim & Company, a statement of the affairs of the said company, embracing its assets and liabilities, after notice to do so had been served upon the defendant by the plaintiff, which said action came on for trial on the 3d of March, 1910, and was dismissed by the justice presiding at said court, as the defendant herein contends on this motion, after a trial of the issues, and that judgment was rendered in favor of the , defendant against the plaintiff in the sum of $36.91 costs; that said plaintiff has never paid to the defendant any part of said costs for which a judgment was rendered against the plaintiff, and that there is now due and owing to the defendant by the plaintiff upon said judgment the full amount thereof. Without paying the costs of said judgment to the defendant, the plaintiff commenced an action in this court on the 5th day of March, 1910, on the same cause of action as the one hereinbefore described, which is evidenced by comparison of the complaint of the Municipal Court action with the complaint in this action, between the same parties, the same subject matter and by same attorneys. Defendant *567obtained an order to show cause from one of the justices of this court on an affidavit setting forth the essential facts as herein described, and prays that an order may be granted staying the plaintiff from proceeding with this action until the judgment for costs in the Municipal Court action is first paid. The plaintiff contends that before the Municipal Court action had proceeded to trial, and before any evidence was introduced, the defendant’s attorney asked for the dismissal of the action on a technical ground, which motion was granted, and that by reason thereof it is further contended that plaintiff herein is not stayed from commencing the action in this court *de novo.*He relies upon the case of Drake v. New York Iron Mine, 71 Hun, 212, wherein the court held in that case: “ Where a defendant has once procured a ruling that the causes of action are different, and has prevented a determination in the prior action of the facts set up in the subsequent action, rendering a new action necessary, he cannot be heard to assert, on an application to stay the plaintiff’s proceedings in the subsequent action until the costs of the prior action have been paid, that the causes of action are the same.” This case shows that the ruling obtained that the causes of action are different. The plaintiff cannot bring frivolous actions which result in nonsuits or dismissals, and on bringing a new action claim that he should be relieved from the costs of former actions. I find that the general rule is that proceedings in a second action for the same cause as the first action should be stayed until the costs of the former action are paid, and that such rule may be enforced unless special facts are presented which indicate that an exception ought to be made, and that the fact that- a person is pecuniarily unable to pay the costs of the prior action is not an excuse sufficient to bring the case within the exception. Muratore v. Pirkl, 109 App. Div. *146;*,Wilner v. Independent Order Ahawas Israel, 122 App. Div. 615; Sprague v. Bartholdi Hotel Co., 68 Hun, 555; Lincoln v. N. Y. C. & H. R. R. R. Co., 121 N. Y. Supp. 1. Where the complaint in an action in the City Court of the city of Hew York is dismissed, with costs, solely through-*568the fault of the plaintiff himself and not through the fault of his attorney, the nonpayment of such costs operates as a stay of proceedings in a subsequent action brought by the plaintiff in the Supreme Court to recover upon the same cause of action. Ingrosso v. Baltimore & O. B. B-. Co., 105 App. Div. 494. I cannot see any distinction between costs on a motion and costs in an action, for i where the costs of a motion in an action are directed to be paid, all proceedings on the part of the party required to pay the same — except to review or vacate the order — are stayed without further direction of the court until the payment thereof. Code Civ. Pro., § 779. The same rule should be ■applied to the payment of costs in an action where another action is commenced between the same parties to recover upon the same cause of action. Indeed, such rule has been applied in numerous cases as far back as Cuyler v. Vanderwerk, 1 Johns. Cas. 247; Perkins v. Hinman, 19 Johns. 237; Edwards v. Ninth ave. R. R. Co., 22 How. Pr. 444; Richardson v. White, 27 id. 155; Spaulding v. American Wood Board Co., 58 App. Div. 315 ; Barton v. Speis, 73 N. Y. 133. The same has been held as to costs of an appeal from an order. “ Costs of a motion are stayed until paid.” Wasserman v. Benjamin, 91 App. Div. 547; Hunt v. Sullivan, 79 id. 119. The defendant having successfully defended the prior action is entitled, before he is put to the trouble and expense of defending this one, to receive such indemnity as the costs of the former action will afford. The motion was made promptly and before an answer was interposed. The cause of action set forth in the Municipal Court and the one stated in the complaint in this court are precisely the same, and. no claim is made that the action in the Municipal Court was dismissed for a fault other than the plaintiff’s. The motion should be granted, with ten dollars costs, and the defendant may have six days’ time to answer after the plaintiff has complied with the order to be entered herein. Settle order on one day’s notice.

Motion granted.